Affirmative action (known as positive discrimination in the United Kingdom, and as employment equity in Canada and elsewhere) refers to policies that take factors including "race, color, religion, sex, or national origin"[1] into consideration in order to benefit an underrepresented group" in areas of employment, education, and business".[2]

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The term "affirmative action" was first used in the United States in Executive Order 10925 and was signed by President John F. Kennedy on 6 March 1961; it was used to promote actions that achieve non-discrimination. In 1965, President Lyndon B. Johnson enacted Executive Order 11246 which required government employers to take "affirmative action" to hire without regard to race, religion and national origin. In 1967, gender was added to the anti-discrimination list.[3]

Affirmative action is intended to promote the opportunities of defined groups within a society. It is often instituted in government and educational settings to ensure that minority groups within a society are included in all programs. The stated justification for affirmative action by its proponents is that it helps to compensate for past discrimination, persecution or exploitation by the ruling class of a culture,[4] and to address existing discrimination.[5] The implementation of affirmative action, especially in the United States, is considered by its proponents to be justified by disparate impact.

Law regarding quotas and affirmative action varies widely from nation to nation. Caste based quotas are used in Reservation in India. However, they are illegal in the United States, where no employer, university, or other entity may create a set number required for each race.[6]

In 2012, the European Union Commission approved a plan for women to constitute 40% of non-executive board directorships in large listed companies in Europe by the year 2020.[7] In Sweden, the Supreme Court has ruled that "affirmative action" ethnic quotas in universities are discrimination and hence unlawful. It said that the requirements for the intake should be the same for all. The Justice Chancellor said that the decision left no room for uncertainty.[8]

The International Convention on the Elimination of All Forms of Racial Discrimination stipulates (in Article 2.2) that affirmative action programs may be required of countries that ratified the convention, in order to rectify systematic discrimination. It states, however, that such programs "shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved."[9]

The United Nations Human Rights Committee states that "the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination, in fact, it is a case of legitimate differentiation under the Covenant."[9]

In some countries that have laws on racial equality, affirmative action is rendered illegal because it does not treat all races equally. This approach of equal treatment is sometimes described as being "color blind", in hopes that it is effective against discrimination without engaging in reverse discrimination.

In such countries, the focus tends to be on ensuring equal opportunity and, for example, targeted advertising campaigns to encourage ethnic minority candidates to join the police force. This is sometimes described as "positive action."

Some Brazilian Universities (State and Federal) have created systems of preferred admissions (quotas) for racial minorities (blacks and native Brazilians), the poor and people with disabilities. There are also quotas of up to 20% of vacancies reserved for people with disabilities in the civil public services.[10] The Democrats party, accusing the board of directors of the University of Brasília of "Nazism", appealed to the Supreme Federal Court the constitutionality of the quotas the University reserves for minorities.[11] The Supreme Court unanimously approved their constitutionality on 26 April 2012.[12]

The equality section of the Canadian Charter of Rights and Freedoms explicitly permits affirmative action type legislation, although the Charter does not require legislation that gives preferential treatment. Subsection 2 of Section 15 states that the equality provisions do "not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

The Canadian Employment Equity Act requires employers in federally-regulated industries to give preferential treatment to four designated groups: Women, people with disabilities, aboriginal people, and visible minorities. In most Canadian Universities, people of Aboriginal background normally have lower entrance requirements and are eligible to receive exclusive scholarships. Some provinces and territories also have affirmative action-type policies. For example, in Northwest Territories in the Canadian north, aboriginal people are given preference for jobs and education and are considered to have P1 status. Non-aboriginal people who were born in the NWT or have resided half of their life there are considered a P2, as well as women and people with disabilities.[13]

Affirmative action was first created from Executive Order 10925, which was signed by President John F. Kennedy on 6 March 1961 and required that government employers "not discriminate against any employee or applicant for employment because of race, creed, color, or national origin" and "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin".[14]

On 24 September 1965, President Lyndon B. Johnson signed Executive Order 11246, thereby replacing Executive Order 10925 and affirming Federal Government's commitment "to promote the full realization of equal employment opportunity through a positive, continuing program in each executive department and agency".[1] Affirmative action was extended to women by Executive Order 11375 which amended Executive Order 11246 on 13 October 1967, by adding "sex" to the list of protected categories. In the U.S. affirmative action's original purpose was to pressure institutions into compliance with the nondiscrimination mandate of the Civil Rights Act of 1964.[5] The Civil Rights Acts do not cover veterans, people with disabilities, or people over 40. These groups are protected from discrimination under different laws.[15]

Affirmative action has been the subject of numerous court cases,[16] and has been questioned upon its constitutional legitimacy. In 2003, a Supreme Court decision regarding affirmative action in higher education (Grutter v. Bollinger, 539 US 244 – Supreme Court 2003) permitted educational institutions to consider race as a factor—a small plus factor—when admitting students, but ruled that strict point systems, such as the one previously used by the University of Michigan Law School, are unconstitutional.[17] Alternatively, some colleges use financial criteria to attract racial groups that have typically been under-represented and typically have lower living conditions. Some states such as California (California Civil Rights Initiative), Michigan (Michigan Civil Rights Initiative), and Washington (Initiative 200) have passed constitutional amendments banning affirmative action within their respective states. Conservative activists have alleged that colleges quietly use illegal quotas and have launched numerous lawsuits to stop them.[18]

A class-based affirmative action policy was incorporated into the admission practices of the four most selective universities in Israel during the early to mid-2000s. In evaluating the eligibility of applicants, neither their financial status nor their national or ethnic origins are considered. The emphasis, rather, is on structural disadvantages, especially neighborhood socioeconomic status and high school rigor, although several individual hardships are also weighed.This policy made the four institutions, especially the echelons at the most selective departments, more diverse than they otherwise would have been. The rise in geographic, economic and demographic diversity of a student population suggests that the plan’s focus on structural determinants of disadvantage yields broad diversity dividends.[19]

In 1971 the Standardization policy of Sri Lankan universities was introduced as an affirmative action program for students from areas which had poor educational facilities due to 200 years purposeful discrimination by British colonialists. The British had practised communal favoritism towards Christians and the minority Tamil community for the entire 200 years they had controlled Sri Lanka, as part of a policy of divide and conquer.

Admission to universities as well as all government positions (including teachers) are determined by the entrance exam, which is extremely competitive at the top level. It is illegal to include sex, ethnicity or other social background (but not nationality) in criteria; however, there are informal policies to provide employment and long term welfare (which is usually not available to general public) to Burakumin at municipality level.

"Preferential policies" required some of the top positions in governments be distributed to ethnic minorities and women. Also, many universities are required by government to give preferred admissions to ethnic minorities.[20][21]

Admission to universities is also determined by the strict entrance exam, which is extremely competitive at the top level. But most of all Korean universities at the top level are adapting some affirmative actions in cases of Chinese ethnic minority, North Korean refugees, etc. in their recruiting new students. Besides, national universities have been pressed by the Korean government, so now they are trying to meet the governmental goal which is to recruit a proportion of female professors.

The Malaysian New Economic Policy or NEP serves as a form of affirmative action. Malaysia provides affirmative action to the majority because in general, the Malays have lower income than the Chinese who have traditionally been involved in businesses and industries.[22] Malaysia is a multi-ethnic country, with Malays making up the majority of close to 52% of the population. About 30% of the population are Malaysians of Chinese descent, while Malaysians of Indian descent comprise about 8% of the population. Government policy provides preferential placement for ethnic Malays, and 95% of all new intakes for the army, hospital nurses, police, and other government institutions are Malays. As of 2004, only 7% of all government servants are ethnic Chinese, a drop from 30% in 1960. All eight of the directors of the national petroleum company, Petronas, are Malays, and only 3% of Petronas employees are Chinese. Additionally, 95% of all government contracts are awarded to ethnic Malays.[23]

(See also Bumiputra) The mean income for Malays, Chinese and Indians in 1957/58 were 134, 288 and 228 respectively. In 1967/68 it was 154, 329 and 245, and in 1970 it was 170, 390 and 300. Mean income disparity ratio for Chinese/Malays rose from 2.1 in 1957/58 to 2.3 in 1970, whereas for Indians/Malays the disparity ratio also rose from 1.7 to 1.8 in the same period.[24] The Malays viewed Independence as restoring their proper place in their own country's socioeconomic order while the non-Malays were opposing government efforts to advance Malay political primacy and economic welfare.

Individuals of Māori or other Polynesian descent are often afforded improved access to university courses, or have scholarships earmarked specifically for them.[25] Affirmative action is provided for under section 73 of the Human Rights Act 1993[26] and section 19(2) of the New Zealand Bill of Rights Act 1990.[27]

In certain university education programs, including legal and medical education, there are quotas for persons who reach a certain standard of skills in the Swedish language; for students admitted in these quotas, the education is partially arranged in Swedish.[28][29] The purpose of the quotas is to guarantee that a sufficient number of professionals with skills in Swedish are educated for nation-wide needs.[28] The quota system has met with criticism from the Finnish speaking majority, some of whom consider the system unfair. In addition to these linguistic quotas, women may get preferential treatment in recruitment for certain public sector jobs if there is a gender imbalance in the field.

No distinctions based on race, religion or sex are allowed under the 1958 French Constitution.<http://thisnation.com/library/france.html> Since the 1980s, a French version of affirmative action based on neighborhood is in place for primary and secondary education. Some schools, in neighborhoods labeled "Priority Education Zones", are granted more funds than the others. Students from these schools also benefit from special policies in certain institutions (such as Sciences Po).[citation needed]

The French Ministry of Defence tried in 1990 to give more easily higher ranks and driving licenses to young French soldiers with North-African ancestry. After a strong protest by a young French lieutenant[30] in the Ministry of Defence newspaper (Armées d'aujourd'hui), this driving license and rank project was cancelled. After the Sarkozy election, a new attempt in favour of Arabian-French students was made but Sarkozy did not gain enough political support to change the French constitution. However, highly ranked French schools do implement affirmative action in that they are obligated to take a certain amount of students from impoverished families.[31]Additionally, following the Norwegian example, after 27 January 2014, women must represent at least 20% of board members in all stock exchange listed or state owned companies. After 27 January 2017, the proportion will increase to 40%. All male director nominations will be invalid as long as the condition is not met, and financial penalties may apply for other directors.[32]

Article 3 of the German Basic Law provides for equal rights of all people regardless of sex, race or social background. There are programs stating that if men and women have equal qualifications, women have to be preferred for a job; moreover, the handicapped should be preferred to healthy people. This is typical for all positions in state and university service as of 2007, typically using the phrase "We try to increase diversity in this line of work". In recent years, there has been a long public debate about whether to issue programs that would grant women a privileged access to jobs in order to fight discrimination. Germany's Left Party brought up the discussion about affirmative action in Germany's school system. According to Stefan Zillich, quotas should be "a possibility" to help working class children who did not do well in school gain access to a Gymnasium (University-preparatory school).[33] Headmasters of Gymnasien have objected, saying that this type of policy would "be a disservice" to poor children.[34]

In 2009, the Berlin Senate decided that Berlin's Gymnasium should no longer be allowed to handpick all of their students. It was ruled that while Gymnasien should be able to pick 70% to 65% of their students, the other places at the Gymnasien are to be allocated by lottery. Every child will be able to enter the lottery, no matter how he or she performed in primary school. It is hoped that this policy will increase the number of working class students attending a Gymnasium.[35]

The Left proposed that Berlin Gymnasien should no longer be allowed to expel students who perform poorly so that the students who won a Gymnasium place in the lottery have a fair chance of graduating from that school.[35] It is not clear yet if Berlin's senate will decide in favour of The Lefts proposal. There is also a discussion going on if affirmative action should be employed to help the children and grandchildren of the so-called Gastarbeiter gain better access to German universities. One prominent proponent of this was Lord Ralf Dahrendorf.[36] It is argued that the Gastarbeiter willingly came to Germany to help build the industry and this should be honored.

Roma people are allocated quotas for access to public schools and state universities.[39] There is evidence that some ethnic Romanians exploit the system so they can be themselves admitted to universities, which has drawn criticism from Roma representatives.[40]

Special treatments of certain groups are commonplace in Sweden. Leveraging of the opportunities of these groups is encouraged by the state. One example is the police, who give women and people from other cultural and ethnic backgrounds concessions when it comes to testing for entrance to the police academy.[citation needed]

In the UK, any discrimination, quotas or favouritism due to sex, race and ethnicity among other "protected characteristics" is generally illegal in education, employment, during commercial transactions, in a private club or association, and while using public services.[25][43][44]

The Apartheid government, as a matter of state policy, favoured white-owned companies and partly as a result of this, the majority of employers in South Africa were white people. The aforementioned policies achieved the desired results, but in the process they marginalised and excluded black people. Skilled jobs were also reserved for white people, and blacks were largely used as unskilled labour, enforced by legislation including the Mines and Works Act, the Job Reservations Act, the Native Building Workers Act, the Apprenticeship Act and the Bantu Education Act,[45] creating and extending the "colour bar" in South African labour.[46] For example, in early 20th century South Africa mine owners preferred hiring black workers because they were cheaper.[47] Then the whites successfully persuaded the government to enact laws that highly restricted the blacks' employment opportunities.[47]

Since the 1960s the Apartheid laws had been weakened. Consequently, from 1975 to 1990 the real wages of black manufacturing workers rose by 50%, that of whites by 1%.[48]

The economic and politically structured society during the apartheid ultimately caused disparities in employment, occupation and income within labour markets, which provided advantages to certain groups and characteristics of people. This in due course was the motivation to introduce affirmative action in South Africa, following the end of Apartheid.[49]

Following the transition to democracy in 1994, the African National Congress-led government chose to implement affirmative action legislation to correct previous imbalances (a policy known as Employment Equity). As such, all employers were compelled by law to employ previously disenfranchised groups (blacks, Indians, and Coloureds). A related, but distinct concept is Black Economic Empowerment.[50]

The Employment Equity Act and the Broad Based Black Economic Empowerment Act aim to promote and achieve equality in the workplace (in South Africa termed "equity"), by advancing people from designated groups. The designated groups who are to be advanced include all people of colour, women (including white women) and people with disabilities (including whites). Employment Equity legislation requires companies employing more than 50 people to design and implement plans to improve the representativity of workforce demographics, and report them to the Department of Labour[51]

Employment Equity also forms part of a company's Black Economic Empowerment scorecard: in a relatively complex scoring system, which allows for some flexibility in the manner in which each company meets its legal commitments, each company is required to meet minimum requirements in terms of representation by previously disadvantaged groups. The matters covered include equity ownership, representation at employee and management level (up to board of director level), procurement from black-owned businesses and social investment programs, amongst others.

The policies of Employment Equity and, particularly, Black Economic empowerment have been criticised both by those who view them as discriminatory against white people, and by those who view them as ineffectual.[52][53][54][55][56]

These laws cause disproportionally high costs for small companies and reduce economic growth and employment.[48] The laws may give the black middle-class some advantage but can make the worse-off blacks even poorer.[48] Moreover, the Supreme Court has ruled that in principle blacks may be favored, but in practice this should not lead to unfair discrimination against the others.[48] Yet it is impossible to favor somebody without discriminating against others.[48]

As mentioned previously affirmative action was introduced through the Employment Equality Act, 55 in 1998, 4 years after the end of Apartheid. This act was passed to promote the constitutional right of equality and exercise true democracy. This idea was to eliminate unfair discrimination in employment, to ensure the implementation of employment equity to redress the effects of discrimination, to achieve a diverse workforce broadly representative of our people, to promote economic development and efficiency in the workforce and to give effects to the obligations of the Republic as a member of the International Labour Organisation.[49][57]

Many embraced the Act; however some concluded that the act contradicted itself. The act eliminates unfair discrimination in certain sectors of the national labour market by imposing similar constraints on another.[49]

With the introduction of Affirmative Action, Black Economic Empowerment (BEE) rose additionally in South Africa. The BEE was not a moral initiative to redress the wrongs of the past but to promote growth and strategies that aim to realize a countries full potential. The idea was targeting the weakest link in economics, which was inequality and which would help develop the economy. This is evident in the statement by the Department of Trade and Industry, “As such, this strategy stresses a BEE process that is associated with growth, development and enterprise development, and not merely the redistribution of existing wealth”.[58][59] Similarities between the BEE and affirmative action are apparent; however there is a difference. BEE focuses more on employment equality rather than taking wealth away from the skilled white labourers.[58]

The main goal of Affirmative Action is for a country to reach its full potential. This occurrence would result in a completely diverse workforce in economic and social sectors. Thus broadening the economic base and therefore stimulating economic growth.[60]

Once applied within the country, many different outcomes arose, some positive and some negative. This depended on the approach and the view of The Employment Equality Act and Affirmative Action.

Positive:
Pre Democracy, the Apartheid discriminated against non-white races, so with affirmative action, the country started to redress past discriminations. Affirmative Action also focused on combating structural racism and racial inequality, hoping to maximize diversity in all levels of society and sectors.[61] Achieving this would elevate the status of the perpetual underclass and to restore equal access to the benefits of society.[49]

Negative:
Though Affirmative Action had its positives, negatives arose. A quota system was implemented, which aimed to achieve targets of diversity in a work force. This target affected the hiring and level of skill in the work force, ultimately affecting the free market.[60][61] Affirmative action created marginalization for coloured and Indian races in South Africa, as well as developing and aiding the middle and elite classes, leaving the lower class behind. This created a bigger gap between the lower and middle class, which lead to class struggles and a greater segregation.[57][61] Entitlement began to arise with the growth of the middle and elite classes, as well as race entitlement. Many believe that affirmative action is discrimination in reverse. With all these negatives, numerous people started to immigrate, of which many were skilled workers, decreasing the skill labor and work force of the country.[49] Many of the negative consequences of affirmative action, specifically the quota system, drive skilled labour away, resulting in bad economic growth. This is due to very few international companies wanting to invest in South Africa.[61]

With these negative and positive outcomes of Affirmative Action it is evident that the concept of affirmative action is a continuous and learning idea.[61]

A 2009 Quinnipiac University Polling Institute survey found American voters opposed to the application of affirmative action to gay people, 65 over 27 percent. African-Americans were found to be in favor by 54 over 38 percent.[62]

According to a poll taken by USA Today in 2005, majority of Americans support affirmative action for women, while views on minority groups were more split.[63] Men are only slightly more likely to support affirmative action for women; though a majority of both do.[63] However, a slight majority of Americans do believe that affirmative action goes beyond ensuring access and goes into the realm of preferential treatment.[63] More recently, a Quinnipiac poll from June 2009 finds that 55% of Americans feel that affirmative action in general should be discontinued, though 55% support it for people with disabilities.[64] A Gallup poll from 2005 showed that 72% of black Americans and 44% of white Americans supported racial affirmative action (with 21% and 49% opposing), with support and opposition among Hispanics falling between those of blacks and whites. Support among blacks, unlike among whites, had almost no correlation with political affiliation.[65]

A Leger poll taken in 2010 finds 59% of Canadians oppose considering race, gender, or ethnicity when hiring for government jobs.[66]

The principle of affirmative action is to promote societal equality through the preferential treatment of socioeconomically disadvantaged people. Often, these people are disadvantaged for historical reasons, such as oppression or slavery.[67]
Historically and internationally, support for affirmative action has sought to achieve a range of goals: bridging inequalities in employment and pay; increasing access to education; enriching state, institutional, and professional leadership with the full spectrum of society; redressing apparent past wrongs, harms, or hindrances, in particular addressing the apparent social imbalance left in the wake of slavery and slave laws.

Opponents of affirmative action such as George Sher believe that affirmative action devalues the accomplishments of people who are chosen based on the social group to which they belong rather than their qualifications, thus rendering affirmative action counterproductive.[68] Opponents,[69] who sometimes say that affirmative action is "reverse discrimination", further claim that affirmative action has undesirable side-effects in addition to failing to achieve its goals. They argue that it hinders reconciliation, replaces old wrongs with new wrongs, undermines the achievements of minorities, and encourages individuals to identify themselves as disadvantaged, even if they are not. It may increase racial tension and benefit the more privileged people within minority groups at the expense of the least fortunate within majority groups (such as lower-class whites).[70] They claim that cases such as Fisher v. University of Texas are few of the many examples that show how reverse discrimination can take place. In 2008, Abigail Fisher, who is a native to Texas, sued the University of Texas at Austin, claiming that she was denied admission to the university because she was "white". The students that are of top 10% in the applicants of the University of Texas are admitted and there are students that compete to barely make it in on the threshold, such as Abigail Fisher. In such cases, race becomes an important factor in deciding who gets admitted to the university, and Fisher argued that discriminating and accepting students according to their race is a violation of the Equal Protection Clause of the Fourteenth Amendment, which ensures equal protection of the law and the citizen's privilege as a citizen of United States. The constitutionality of affirmative action in college admissions is now before the Supreme Court in the 2013 landmark case Fisher v. University of Texas. [71]

American economist, social and political commentator, Dr. Thomas Sowell identified some negative results of race-based affirmative action in his book, Affirmative Action Around the World: An Empirical Study.[72] Sowell writes that affirmative action policies encourage non-preferred groups to designate themselves as members of preferred groups (i.e., primary beneficiaries of affirmative action) to take advantage of group preference policies; that they tend to benefit primarily the most fortunate among the preferred group (e.g., upper and middle class blacks), often to the detriment of the least fortunate among the non-preferred groups (e.g., poor whites or Asians); that they reduce the incentives of both the preferred and non-preferred to perform at their best – the former because doing so is unnecessary and the latter because it can prove futile – thereby resulting in net losses for society as a whole; and that they increase animosity toward preferred groups.

Mismatching is the term given to the negative effect that affirmative action has when it places a student into a college that is too difficult for him or her. For example, according to the theory, in the absence of affirmative action, a student will be admitted to a college that matches his or her academic ability and have a good chance of graduating. However, according to the mismatching theory, affirmative action often places a student into a college that is too difficult, and this increases the student's chance of dropping out. Thus, according to the theory, affirmative action hurts its intended beneficiaries, because it increases their dropout rate.[73][74]

Evidence in support of the mismatching theory was presented by Gail Heriot, a professor of law at the University of San Diego and a member of the U.S. Commission on Civil Rights, in an 24 August 2007 article published in the Wall Street Journal. The article reported on a 2004 study that was conducted by UCLA law professor Richard Sander and published in the Stanford Law Review. The study concluded that there were 7.9% fewer black attorneys than there would have been if there had been no affirmative action. The study was titled, "A Systemic Analysis of Affirmative Action in American Law Schools."[75] The article also states that because of mismatching, blacks are more likely to drop out of law school and fail bar exams.[76]

Sander's paper on mismatching has been criticized by several law professors, including Ian Ayres and Richard Brooks from Yale who argue that eliminating affirmative action would actually reduce the number of black lawyers by 12.7%.[77]

Golland, David Hamilton, "Constructing Affirmative Action: Federal Contract Compliance and the Building Construction Trades, 1956–1973" (PhD dissertation City University of New York, 2008). Order No. DA3325474.